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The Medical Injury Compensation Reform Act or MICRA was enacted in 1975 by pressure from doctors in California wanting to limit the amount of damages victims of medical malpractice could obtain from lawsuits.  This limits the amount of money a victim of medical malpractice in California can obtain for non-economic damages, including emotional distress and pain and suffering to $250,000.  Since its introduction, tens of thousands of patients injured by preventable medical errors have been denied just compensation for their injuries.  

Although this creates a challenge for victims of medical malpractice, there are still additional resources available.  And while MICRA creates a difficult challenge for victims of medical malpractice in California, there are other states that are far more excessive with their limitations on damages.  For example, Virginia limits the total amount a victim of medical malpractice can recover for economic, non-economic, and punitive damages to $2 million.  Indiana limits the total amount for economic and non-economic damages to $1.25 million.  If a birth injury victim in California was awarded $7 million for economic damages, that same victim in Indiana would only receive $1.25 million to cover the same damages.   

Although non-economic damages in California are limited to $250,000 for medical malpractice victims, there is no cap on economic damages.  Economic damages include a lifetime calculation of lost wages and medical care for the victim of medical malpractice.  If a child suffers a severe and permanent birth injury such as cerebral palsy, although MICRA limits his or her non-economic damages to $250,000, there are still economic damages that must be calculated.  How much does it take to provide medical care for this individual for the rest of his or her life? Does this victim require a full time care giver?  How much lost wages would this victim be expected to lose for a lifetime of being out of work?

The cost of living has gone up dramatically since 1975 and while the $250,000 for non-economic damages has substantially decreased in value when factoring in the cost of living, the cost of medical care has increased dramatically, so the economic damages produce sizable damages for victims of medical malpractice.  

Taking the cerebral palsy birth injury example from above, this victim will likely need full time medical care and resources for the rest of his or her lifetime.  Full time medical care may require a full time care giver to handle daily routines including getting dressed, bathing, and feeding.  Also, medication, therapy, and doctor visits will likely be required.  The amount of medical care and resources necessary to take care of a severe cerebral palsy birth injury victim may cost millions of dollars over the victim's lifetime.  There is also the amount of lost wages the victim will lose over a lifetime and this must be factored into the economic damages as well.  Economic damages are the reasons why a medical malpractice victim may recover damages into the millions when MICRA places non-economic damages at a maximum of $250,000.   

If you or someone you love has been the victim of medical malpractice, you should immediately consult with a medical malpractice lawyer who is also a licensed physician, such as Dr. Bruce G. Fagel.  The consultation is free and if we take on your case, there is no fee unless we win your case.  

Each year cancer diagnosis delays or cancer misdiagnosis, leads to enormous suffering and wrongful deaths for thousands of Americans and their families. Cancer is the uncontrollable growth of abnormal cells and can occur anywhere in the body.  These cells can either be cured or they will lead to the eventual death of the patient.  While normal cells multiply when the body has a need for them and then die when the body no longer has a need for them, cancer happens when the growth of cells in the body is uncontrollable and the cells begin to divide too quickly.  Cancer cells also do not die when the body requires them to die.

Early detection for many forms of cancer is critical to improving a patient's survival rate.  With the improvements in cancer treatment over the past couple decades, those with certain types of cancers have a dramatically improved chance of recovery if the cancers are detected and treated early.  The types of cancers that have a good chance of being treated, if treated early in the stages, include colon cancer, breast cancer, lung cancer, and non-small cell cancers.  However, some cancers have a poor chance of recovery no matter what stage the cancer is detected.  These types of cancers include small cell lung cancer, pancreatic cancer, and ovarian cancer.

Proper cancer diagnosis and early detection are critical to helping the patient live a longer and healthier life.  If a doctor fails to diagnose cancer in its early stages, confuses the cancer for another medical condition, or even fails to diagnose the cancer at all, can lead to the spreading of the cancer to other parts of the body and the eventual death of the patient.   

If a cancer misdiagnosis by a doctor for a treatable cancer leads to serious injuries to the patient or death, a medical negligence or medical malpractice lawsuit may be initiated. One critical element in a medical malpractice lawsuit involving cancer is proving that the doctor should have diagnosed the cancer at the early stage and provided proper treatment, preventing the cancer from causing severe damage to the patient.  If the cancer was a type where early treatment would not have made a significant difference, then a medical negligence or medical malpractice lawsuit would likely not be feasible.

Dr. Bruce Fagel has extensive experience dealing with cancer misdiagnosis and delay in diagnosis cases.  In addition to being a top medical malpractice lawyer, Dr. Fagel is also a licensed physician, and has over 10 years emergency room experience.  This extensive combination of experience allows Dr. Fagel to probe medical records and understand if there is a case for medical malpractice.  

Diagnostic physicians, who rely on diagnostic tests, need to inform referring clinicians when test results produce urgent or unexpected findings.  Test communication failures for diagnostic testing are placing physicians at an increased risk of medical malpractice claims, as reflected in an article selected as the "CME Activity of the Month" in the most recent edition of Journal of the American College of Radiology (JACR).

During the past decade, clinicians have dramatically increased their orders for diagnostic examinations.  During the period between 1996 and 2003, there has been an increase by approximately 40% for malpractice payments related to diagnosis.  This problem was reflected in the article by Brian D. Gale, MD, MBA, assistant professor of radiology at SUNY Downstate Medical Center in Brooklyn.  

During the period of 1991 to 2009, National Practitioner Data Bank data showed communication failure awards was responsible for an increasing proportion of total United States malpractice awards for providers.  The proportion jumped from .93% in 1991 to 2.31% in 2009.  The total indemnity payout for all medical specialties claims dramatically rose from $21.7 million in 1991 to an alarming $91 million in 2010.  This averages out to a $4.67 million increase annually.  Factors that contributed to the communication failures included long turnaround time, delays in reporting findings, and failure of the patients and physicians to receive the results.

There is hope for improvement however.  Dr. Brian Gale suggests that using semi-automated critical test result management systems may help to improve the patient safety and work flow, improve the notification reliability for everyone in the loop, and provide legal documentation.  Dr. Gale suggests healthcare organizations need to have a clear set of policies in place to address reportable test results, to make sure patients and referring providers are notified and followed up with.

As more knowledge surfaces regarding cancer screenings, expert groups are recommending less frequent screenings for prostate, breast, and cervical cancers. It appears from numerous clinical trial studies and analysis of medical data that previous recommendations such as annual Pap tests for women be less frequent, in the case of Pap tests, every three years instead.

Studies are showing that not only may testing too frequently for cancer potentially cause harm to patients, it also appears to be a financial burden to the health care system.  However, some doctors are walking the fine-line between saving money and risking a lawsuit for failure to detect a treatable cancer in time.

An article in the NYTimes.com titled, "Considering When It Might Be Best Not to Know About Cancer" breaks down new screening recommendations from expert medical groups:

• Women in their 40's do not appear to benefit from mammograms
• Women ages 50 to 74 should have mammograms every two years, instead of every year
• P.S.A. screening test for prostate cancer does not save lives and causes enormous harm
• Pap tests for women for cervical cancer should be every three years, instead of every year

Expert medical groups are now questioning if prostate cancer screenings are saving any lives at all.  These groups fear that the screening often leads to disabling treatments for men, who really didn't need to treat the cancer in the first place.

A mammography study revealed that out of 138,000 cancers detected in women each year, somewhere between 120,000 to 134,000 of these cancers are already lethal and beyond being treatable or the cancers will grow slowly and not need to be treated at all.

Dr. Otis Brawley, chief medical officer with the American Cancer Society states, "Screening is always a double-edged sword.  We need to be more cautious in our advocacy of these screening tests." However, many doctors and specialists, such as urologists, radiologists, and oncologists believe screening is necessary to detect and treat cancer early.  Questions are also arising whether this subject is coming up simply due to costs and the modern healthcare crisis.

Regarding costs, The New England Journal of Medicine posted an article concluding $5.2 million must be spent on screening to prevent one prostate cancer death. Estimates are this amount is actually higher than that.  This brings up the issue of how much to spend in order to save lives.  It also creates a dilemma for doctors who will have a difficult time explaining the new guidelines to patients.  Some doctors may make recommendations based on their own beliefs and the wishes of the patient's for more screening.  Also, as more cancers are being determined not to be treatable, or not be a threat, the issue of cancer screening has become even more complicated; likely leaving many patients wondering when and if they should be screened.

Several hundred USC University Hospital workers went on strike Wednesday, picketing outside the Keck Medical Center of USC.  Workers who went on strike include certified nursing assistants, X-ray technicians, and housekeeping staff.

The National Union of Healthcare representing the workers state they have been in negotiations with the hospital for over a year.  The union is demanding the workers have a better say in how the hospital is staffed. The union claims there is a serious short-staffing problem, a one year freeze in wages, and the workers are excluded from the university's tuition and retirement benefits plan.  There are additional issues as well.  A respiratory technician, Noemi Aguirre stated, "we have a lot of units where we are just plain short-staffed and they haven't addressed those issues for us." Aguirre also commented, "One sticking point deals with patient care committees, which are set up by union workers so they have a voice in patient care."

The National Labor Relations Board in Los Angeles will address the workers demands later this month.  Hospital spokesman Mitch Treem stated, "While we are unable to discuss the specifics of our proposal publicly, we can say that our NUHW employees are among the highest paid in the region."

With the recent hospital worker strikes, including the 34 hospitals in Northern California, mistakes can be made. One such tragedy occurred during the recent nursing strike at Alta Bates Summit Medical Center, where a cancer patient died after a temporary replacement nurse mistakenly administered the wrong medication to the patient.  Dr. Bruce G. Fagel, a licensed medical doctor and medical malpractice attorney was quoted by the San Jose Mercury News and Contra Costa Times, September 26, 2011, "having replacement or temporary nurses working in hospitals for extended periods increases the risk of medical mistakes that harm patients."

Most medical professionals who provide radiation therapy rarely report near-misses or errors, not because of the amount of time it takes or the complications of using the on-line error reporting systems, but rather, fear of getting into trouble and embarrassment.  In fact a recent survey by Johns Hopkins places the number at 90% of providers who witness near-misses or errors and never report them, because they are embarrassed and don't want to get their co-workers or themselves in trouble.  See John Hopkins Survey titled, "Survey Reveals Reasons Doctors Avoid Online Error-Reporting Tools."   

Investigators who emailed anonymous surveys to physicians, nurses, radiation physicists and radiation specialists at John Hopkins, North Shore Long Island Jewish Health Systems in New York, Washington University in St. Louis, Missouri, and the University of Miami, asked questions about near misses and errors in delivering radio therapy in order to better address problems associated with these procedures and how to improve the quality.    

The results show that the complexity of the software is not the problem, nor the amount of time it takes to file the reports, but rather the personnel want to avoid embarrassment to themselves or their co-workers, and avoid getting anyone into trouble, when mistakes are made or narrowly avoided.  This survey presents valuable feedback that could relate to other medical areas as well, and most importantly can help medical facilities set standards that encourage the reporting of errors and near-misses, rather than hide them.  If the systems are used not to punish the medical professionals who report mistakes but rather to improve the process, perhaps the safety record can be improved and everyone will benefit, from the patients, to the medical staff, to the medical facilities, to the insurance companies.  Johns Hopkins radiation oncology resident Kendra Harris, M.D. remarked, "It is important to understand the specific reasons why fewer physicians participate in these reporting systems so that hospitals can work to close this gap.  Reporting is not an end in itself, it helps identify potential hazards, and each member of the health care team brings a perspective that can help make patients safer."

Most of the respondents in the survey said they would be interested in participating in a national reporting system for radiotherapy near-misses and errors.  A national system would be able to collect all the shared data and look for trends, which could help medical professionals improve safety standards.

Failure to diagnose cancer leads to terrible suffering and wrongful deaths for thousands of Americans each year. A failure to diagnose or misdiagnose cancer allows the cancer to progress through the body until the point where nothing can be done to save the patient's life.  When a doctor fails to properly diagnose or misdiagnoses the cancer, the patient suffers enormously from the wrong treatment, delayed treatment, or lack of receiving any treatment at all.

Cancer is not a single disease; it's a multitude of different types of problems involving different organ systems, so there is different statistics for different types of cancers.  When it comes to some types of cancers, such as certain types of brain cancers or pancreatic cancer, it almost doesn't make a lot of difference if there is a delay diagnosing them, because these types of cancers are difficult to treat no matter when they are detected.  Other types of cancers, such as non-small cell, lung cancer, colon cancer, and breast cancer, are effected by treatment time, because treatment delays do result in some differences in terms of the patient's outcome when there has been a significant delay.  Regardless of the type of cancer or location of the cancer, the earlier the diagnosis is made, and the sooner treatment begins, the better the chances for survival.

Regarding medical malpractice cases, we have to look at every type of patient or claim where a patient has had some type of delay in diagnosis in cancer, as an individual case, because each case is different based on the types of different cancers, time frames, and a number of different types of factors.  The law is also different for the statistics used for the types of cancer cases.  Therefore, every cancer case has to be looked at individually and we can't make generalizations.  But there are certainly a lot of patients who unnecessarily have a terminal prognosis given or die as a result in the delay of their diagnosis.

The following are examples of cancer misdiagnosis:

• Failure to investigate a patient's complaints to find out what is making them ill

• Failure to identify the type of cancer

• Failure to correctly identify a tumor or skin lesion as malignant

• Failure to send a patient to a specialist

• Failure to properly screen patients for lifestyle behaviors associated with cancers

• Failure to follow up with patients who do not respond to the treatment

If you believe you or someone you care about was not properly diagnosed for cancer or misdiagnosed, you may have grounds for a medical malpractice case.  Contact an experienced medical malpractice attorney today.  Dr. Bruce Fagel is a medical malpractice lawyer and a licensed medical doctor, so he understands exactly what it takes to pursue and win a case involving a delay in diagnosis or misdiagnosis of cancer.

A Pennsylvania jury has awarded a husband $2 million in damages in a medical malpractice case.

The verdict comes after the husband sued a local gynecologist for medical malpractice, claiming that the cancer his wife suffered from was a result of the doctor's negligence.

The plaintiff's wife had suffered from ovarian cancer. She once survived the disease in 2004, but during a lengthy and intense surgery, her doctor failed to remove her fallopian tube and left ovary. This, according to the lawsuit, increased the chances of the cancer returning.

The plaintiff says that his wife was never told by her doctor that the left ovary remained in her body, and a pathology report was produced showing no trace of the ovary. The plaintiff and his lawyers claim that this lack of information prevented the woman from seeking a second opinion or requesting an additional surgery.

The cancer returned, and the plaintiff's wife suffered for three years. In the summer 2008, she died as a result of the ovarian cancer. Lawyers for the plaintiff described her death as "avoidable."

The plaintiff testified that his wife aggressively fought to survive her second battle with ovarian cancer. She and her husband frequently spent time in Massachusetts exploring experimental medicine and other treatments. The frequent travel eventually cost the plaintiff his job.

If you or a loved one have been the victim of medical malpractice or wrongful death, contact the Law Offices of Dr. Bruce G. Fagel & Associates. For a free legal consultation, call us toll free at 1-800-541-9376 or click here to visit our website.